Opinion
CV-15388-15/BX
03-16-2020
TD BANK USA, N.A., Plaintiff, v. Faye M. GLYNN, Defendant.
For Plaintiff: Selip & Stylianou, LLP 199 Crossways Park Drive P.O. Box 9004 Woodbury, New York 11797-9004 Defendant is pro se.
For Plaintiff: Selip & Stylianou, LLP 199 Crossways Park Drive P.O. Box 9004 Woodbury, New York 11797-9004
Defendant is pro se.
Bianka Perez, J.
Recitation of the papers considered in reviewing the underlying motion as required by CPLR § 2219(a) :
Papers Numbered
Notice of Motion, with annexed affidavit and exhibits 1
Plaintiff moves for summary judgment, pursuant to CPLR § 3212, on its cause of action for breach of contract and in the alternative, an action for an account stated. Defendant has not filed an opposition to the instant motion. The outstanding balance claimed by plaintiff is $1,332.21. This motion follows a motion for summary judgment filed on this matter November 29, 2016, which was denied by the Honorable Llinet M. Rosado on February 1, 2017.
CPLR § 2221 governs all motions affecting prior orders of the Court. Plaintiff has titled their submission as a motion for summary judgment. However, the motion before the Court is essentially a motion for leave to renew a prior motion pursuant to CPLR § 2221. Accordingly, the Court will treat plaintiff's summary judgment motion as such.
Pursuant to § 2221(a), a motion for leave to renew a prior motion must be made to the Judge who signed the order. Here, plaintiff failed to renew their motion for summary judgment before Judge Rosado. In bringing the motion before this Court, plaintiff essentially asks this Court to sit in an appellate capacity over a colleague, an outcome which expressly conflicts with the intended purpose of CPLR § 2221(a). See, Yuan Zhai v. Chemical Bank et al. , 689 NYS2d 366 (Civ Ct, New York County 1999) ("The primary purpose of the foregoing same-Judge rule ‘is to prevent one nisi prius judge from in effect sitting as a court of appeals over a colleague’ ... The unseemly conflicts, of course, are only exacerbated when the Judge reviewing the prior order is a court of limited jurisdiction (i.e., Civil Court) and the Judge whose prior order is being ‘reviewed’ is a superior court of general jurisdiction (i.e., Supreme Court).").
Additionally, a motion for leave to renew pursuant to CPLR § 2221(e) is addressed to the sound discretion of the Court. See, Matheus v. Weiss , 20 AD3d 454, 454-55 (App Div 2d Dept, 2005). A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination ... and shall contain reasonable justification for the failure to present such facts on the prior motion." See, CPLR § 2221(e)(2)-(3) ; Estate of Essig v. 5670 58th St. Holding Corp. , 66 AD3d 822, 822 (App Div 2d Dept, 2009). Here, plaintiff did not offer a reasonable justification for their failure to present the new facts in this motion. In fact, plaintiff offered no justification at all for the three-year delay in submitting this new motion to the Court.
Accordingly, pursuant to CPLR 3215(c), the court sua sponte dismisses the action as abandoned. Plaintiff failed to show sufficient cause as to why the complaint should not be dismissed.
Accordingly, it is hereby
ORDERED and ADJUDGED that the plaintiff's application for summary judgment is hereby denied. The clerk of the Court is directed to dismiss the complaint.
This constitutes the decision and order of this Court.